8 Fla. L. Weekly Supp. 859b
Insurance — Personal injury protection — Medical bills — Reduction — Usual and customary charges — Discovery — Trade secrets — Defendant had adequate notice that plaintiff was challenging its improper objections to supplemental discovery requests — Further, defendant seems to be attempting to assert trade secret privilege on behalf of unidentified nonparty to lawsuit — Motion for protective order or for continuance of hearing on plaintiff’s amended motion to compel denied
MEDICAL EVALUATION CENTERS, INC., as assignee of ALFRED GAINES, Plaintiff, vs. METROPOLITAN PROPERTY AND CASUALTY INSURANCE COMPANY, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County. Case No. 00-17934-CC/J. October 26, 2001. Gaston J. Fernandez, Judge. Counsel: Alexander Billias, Morgan, Colling & Gilbert, P.A., Orlando, for Plaintiff. Andrew D. Reeder, Reynolds & Stowell, P.A., for Defendant.
ORDER DENYING DEFENDANT’S MOTION FORPROTECTIVE ORDER/MOTION FOR CONTINUANCE
THIS CAUSE having come before the Court on October 9, 2001 on Defendant’s Motion for Protective Order/Motion for Continuance, (certificate date October 5, 2001), both parties appearing through counsel and having presented the following arguments:
FACTS AND PROCEDURAL BACKGROUND
1. This personal injury protection litigation involves UCR reductions of medical bills submitted by Plaintiff.
2. Defendant has filed a Motion for Protective Order/Motion for Continuance regarding a hearing that is set to take place on Thursday, October 11, 2001 at 1:30 p.m. before this Court on Plaintiff’s Amended Motion to Compel Better Answers to Plaintiff’s Supplemental Request to Produce.
3. Defendant, Metropolitan Property and Casualty Insurance Company, argues the following:
On September 26, 2001, Plaintiff filed an Amended Motion to Compel Better Answers to Plaintiff’s Supplemental Request to Produce. Defendant received this motion on October 1, 2001.
On September 26, 2001, Plaintiff filed an Amended Notice of Hearing on Plaintiff’s Amended Motion to Compel Better Answers to Plaintiff’s Supplemental Request to Produce, which indicated that Plaintiff’s Motion was set for hearing on October 11, 2001. Defendant received this Amended Notice of Hearing on October 1, 2001.
This hearing date was unilaterally scheduled by Plaintiff’s attorney’s office, without consulting Defense counsel. Upon receipt of the Amended Notice of Hearing, Defense counsel’s office contacted Plaintiff’s attorney’s office in an attempt to reschedule the hearing on Plaintiff’s Amended Motion to Compel for a date that was acceptable to both parties. However, Plaintiff was unwilling to reschedule the hearing.
Plaintiff’s Amended Motion to Compel requests the production of documents that Defendant objected to in its Response to Plaintiff’s Supplemental Request to Produce, claiming the documents were protected as a trade secret. As a result, Defendant intends to file an affidavit of Defendant’s corporate representative with the most knowledge of the information Plaintiff is requesting in its Supplemental Request to Produce indicating how the information requested is a trade secret or confidential business information, as well as how disclosure of this information may be harmful to Defendant.
Furthermore, based on Defendant’s past experiences in PIP cases regarding the Plaintiff’s attempts to compel the production of the same Information the Plaintiff in this case is seeking in its Supplemental Request to Produce, Defendant believes that a third party will also be asserting the trade secret privilege, which it has the right to do according to Florida Statutes, Section 90.506.
Requiring the parties to attend a hearing on Plaintiff’s Amended Motion to Compel on October 11, 2001, as indicated on the Amended Notice of Hearing, will substantially prejudice Defendant, as well as the third party that Defendant believes will also be claiming the trade secret privilege regarding the information Plaintiff is seeking once the third party receives notice of the Amended Motion to Compel and the hearing regarding Plaintiff’s Amended Motion.
Plaintiff’s unilateral scheduling of its Amended Motion to Compel precluded Defendant ample time to respond to the Amended Motion, including preparing an affidavit of its corporate representative with the most knowledge of the information Plaintiff is requesting in its Supplemental Request to Produce indicating how the information requested is a trade secret or confidential business information, as well as how disclosure of this information may be harmful to Defendant. This individual resides outside the State of Florida requiring additional time that is normally needed in the preparation of affidavits.
Furthermore, the third party that Defendant believes will be asserting the trade secret privilege is located in California, which would require more time than Plaintiff has allowed between the filing of the Amended Motion and the date of the hearing.
The information Plaintiff is seeking in its Amended Motion to Compel is protected as a trade secret and confidential business information. Continuing the hearing on Plaintiff’s Amended Motion to Compel will in no way prejudice Plaintiff. In addition, it is reasonably foreseeable that should Plaintiff’s Amended Motion to Compel be granted after this Court declined to continue the hearing on Plaintiff’s Amended Motion, the above-mentioned third party would file a motion to have the information returned that was provided to Plaintiff. Thus, continuing the hearing on Plaintiff’s Amended Motion to Compel would prevent a substantial undue burden and severe prejudice on Defendant, as well as prevent the unnecessary use of judicial time and resources in hearing a third party’s motion to have protected trade secrets returned to Defendant.
WHEREFORE, the Defendant’s Metropolitan Property and Casualty Insurance Company, respectfully requests this Court to grant its Motion for Protective Order, or in the alternative to enter an order continuing the hearing on Plaintiff’s Amended Motion to Compel Better Answers to Supplemental Request to Produce until such time as Defendant is able to file the above-mentioned affidavit and allow sufficient time for any third parties to assert the trade secret privilege should they desire.
4. In response, Plaintiff, Medical Evaluation Centers, Inc., as assignee of Alfred Gaines, asserts the following:
The hearing that is scheduled to take place on Thursday, October 11, 2001 at 1:30 p.m. before this Court was originally a hearing on Plaintiff’s Motion to Compel Better Answers to Plaintiff’s Supplemental Interrogatories.
On December 22, 2000, (which is 291 days and over nine months ago), Defendant submitted its objections to Plaintiff’s Supplemental Interrogatories and Supplemental Request to Produce. In Defendant’s objections to Plaintiff’s Supplemental Interrogatories, Defendant asserted the “trade secret” privilege as a basis for objecting to Plaintiff’s Supplemental Interrogatories numbers 3, 4, 7 and 8.
On August 7, 2001, (which is 62 days and over 2 months ago), Plaintiff filed its Motion to Compel Better Answers to Plaintiff’s Supplemental Interrogatories and its Motion to Compel Better Answers to Plaintiff’s Supplemental Request to Produce. As Plaintiff asserted in each of its motions, respectively, “several of Defendant’s objections are improper and therefore Plaintiff is clearly entitled to better answers to its supplemental interrogatories” and “several of Defendant’s objections are improper and therefore Plaintiff is clearly entitled to better answers to its supplemental Request to Produce.”
In its Motion to Compel Better Answers to Plaintiff’s Supplemental Interrogatories and its Motion to Compel Better Answers to Plaintiff’s Supplemental Request to Produce, Plaintiff was essentially seeking to call-up Defendant’s objections to Plaintiff’s Supplemental Interrogatories for a hearing.
Plaintiff filed its Notice of Hearing on Plaintiff’s Motion to Compel Better Answers to Defendant’s Interrogatories on August 8, 2001, (which is 63 days and over 2 months ago). At the very least, over 2 months ago, Defendant was aware that Plaintiff would be challenging its assertion of the “trade secret” privilege in the hearing on Plaintiff’s Motion to Compel Better Answers to Plaintiff’s Supplemental Interrogatories.
On September 26, 2001, Plaintiff filed its Amended Motion to Compel Better Responses to Plaintiff’s Supplemental Request to Produce. This motion is substantively identical to Plaintiff’s [original] Motion to Compel Better Responses to Plaintiff’s Supplemental Request to Produce, filed by Plaintiff on August 7, 2001, (which is 62 days and over 2 months ago). The primary difference in the two motions is that Plaintiff has cited case law in its amended motion in support of its position that Defendant’s objections to Plaintiff’s supplemental discovery requests are improper.
On September 26, 2001, Plaintiff filed an Amended Notice of Hearing on Plaintiff’s Amended Motion to Compel Better Responses to Plaintiff’s Supplemental Request to Produce. Plaintiff was again simply seeking to call-up Defendant’s improper objections to Plaintiff’s supplemental discovery requests for a hearing.
Defendant received Plaintiff’s Amended Notice of Hearing on Plaintiff’s Amended Motion to Compel Better Responses to Plaintiff’s Supplemental Request to Produce on October 1, 2001.
After receiving Plaintiff’s Amended Notice of Hearing on Plaintiff’s Amended Motion to Compel Better Responses to Plaintiff’s Supplemental Request to Produce on October 1, 2001, Defendant failed to contact Plaintiff’s counsel on Monday, October 1, 2001, Tuesday, October 2, 2001, Wednesday, October 3, 2001, or Thursday, October 4, 2001.
On October 5, 2001, Defendant’s counsel’s office finally contacted Plaintiff’s counsel’s office via telephone and requested that Plaintiff postpone the hearing that is scheduled to take place on Thursday, October 11, 2001 at 1:30 p.m. on Plaintiff’s Amended Motion to Compel Better Responses to Plaintiff’s Supplemental Request to Produce.
Plaintiff has refused to cancel this hearing as Defendant has known it asserted the “trade secret” privilege in its objections to Plaintiff’s supplemental discovery requests on December 22, 2000, which is 291 days and over nine months ago.
Defendant has also been on notice that Plaintiff was challenging its improper objections to Plaintiff’s supplemental discovery requests since it received its Motion to Compel Better Answers to Plaintiff’s Supplemental Interrogatories and its Motion to Compel Better Answers to Plaintiff’s Supplemental Request to Produce on August 7, 2001, which is 62 days and over 2 months ago.
Furthermore, Defendant seems to be attempting to assert the trade secret privilege on behalf of a mysterious, unidentified nonparty to this lawsuit. There is clearly no provision under the Florida Rules of Civil Procedure or Florida Statutes that would allow Defendant to assert such privilege on behalf of a nonparty to a lawsuit.
Lastly, Defendant asserts that this court should grant its Motion for Protective Order/Motion for Continuance “to prevent the unnecessary use of judicial time and resources in hearing a third party’s motion to have protected trade secrets returned to Defendant.” Plaintiff asserts that Defendant’s allegations regarding what actions a nonparty may or may not take in the future are purely speculative, at best, and that if Defendant was genuinely concerned about preserving the Court’s limited time and resources, Defendant would not have taken the Court’s time in filing this motion and setting it for a hearing.
For the foregoing reasons, Plaintiff, Medical Evaluation Centers, Inc., as assignee of Alfred Gaines, requests this Court deny Defendant’s Motion for Protective Order/Motion for Continuance, in its entirety.
LAW AND ANALYSIS
The Court does ORDER and ADJUDGE as follows:
5. Defendant’s Motion for Protective Order/Motion for Continuance is hereby DENIED, in its entirety.
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